Schnell v. Howitt
Citation | 76 P.2d 1130,158 Or. 586 |
Parties | SCHNELL <I>v.</I> HOWITT |
Decision Date | 08 March 1938 |
Court | Supreme Court of Oregon |
See 2 Am. Jur. 728 3 C.J.S., Animals, § 148
Appeal from Circuit Court, Multnomah County.
Personal injury action by William Schnell, by his guardian ad litem, Sophia Schnell, against George K. Howitt. From a judgment for plaintiff, defendant appeals.
REVERSED.
George D. La Roche and J.B. Ofner, both of Portland, for appellant.
Arthur Langguth and L.S. Dunsmore, both of Portland, for respondent.
On March 14, 1935, the plaintiff, while in the employ of the defendant and at work upon defendant's premises, sustained an injury by being hooked by a cow belonging to the defendant. Plaintiff brought this action to recover for the injury and, from a judgment in his favor, the defendant has appealed.
It is alleged in the complaint that the defendant owns and operates what is known as "East Side Stables" in the city of Portland and that the plaintiff "was employed to do such work in and about said stables as may be required in the course of the day's work". The evidence shows that the injury was sustained on said premises and while plaintiff was engaged in unfastening the cow from a stall.
As grounds for the action, the plaintiff alleges that the defendant failed to warn him of the danger and also failed to provide him with a safe place in which to work. There is no allegation in the pleadings, nor was any evidence offered upon the trial, tending to show that prior to the injury the cow was vicious or had ever evidenced any dangerous propensities.
1. It is a well-established rule of law that the owner of an animal not naturally vicious, such as a cow, is not answerable for an injury done by it unless it was, in fact and to his knowledge, vicious: 2 Am. Jur., Animals, sec. 48, and authorities there cited.
In 3 C.J.S., Animals, sec. 148, it is said:
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